Policing the seropositive body: From individual viral loads to the public spectacle of criminal prosecutions for HIV non-disclosure

For the Ottawa Canadian Law and Society annual Congress Conference meeting in 2015 I presented a collaborative presentation for the keynote panel based on work with my colleague Dr. Adrian Guta. This work will also be presented at the upcoming Surveillance and Society Conference in Barcelona. This is the abstract for the presentation:

This presentation examines the implications of new HIV treatment and prevention technologies in the form of HIV ‘treatment as prevention’ (TasP) and ‘pre-exposure prophylaxis’ (PrEP) in relation to the criminalization of HIV non-disclosure and exposure in Canada and the potential for mandatory treatment adherence. Drawing on an analytic of governmentality, this presentation explores new clinical and public health surveillance technologies focused on the both the care and control of persons living with HIV who achieve an undetectable viral load through antiretroviral adherence, and the ‘high risk’ gay man who uses PrEP(with lower doses of antiretroviral therapy) to protect himself against infection. This presentation considers the implications of these new technologies of risk, surveillance, and the practices of the self for both people living with and the ‘at risk’ who are required to engage in new ways with therapeutic providers who diagnose, prescribe, monitor, and share this information with public health and potentially with law enforcement. 

WhoreLock/Up 27 of 185

Public projection and spectacle collaboration between Mikiki & Alexander McClelland

****This is not a trigger warning, this is our lives: presentation contains graphic discussions of various forms of violence****

As a collaboration between artist Mikiki and doctoral student Alexander McClelland this work pieces together media reports and juridical documents so as to understand how people’s lives are discursively constructed into cases, cases where individual people with HIV are transformed and come only to be known as ‘risks’ in need of care, control, regulation, surveillance, and incapacitation. In such cases, legal documents and media reports construct histories, histories in the service of an institutional logic that this at odds with the lives of people living with HIV. Rather than engaging in the normative debates presenting ‘innocent’ subjects in contrast to the ‘guilty’ mark of institutions, this collaborative work aims to understand the materiality of being marked as a ‘criminal’ and a ‘risk’ to public safety, and how hypervisibility is a tool used by state and private sector institutions to govern and create a public panic around HIV.

As a growing phenomenon in Canada – one that is disproportionate in scope to other countries– the expansion of legal governance of HIV is part of a fast growing trend in Canada, where there have been upwards of 185 criminal law cases since 1989 related to exposure or non-disclosure of HIV. Cases are on the rise, with high rates of prosecution for aggravated sexual assault charges that with a mandatory registration as a sex offender and sentence of up to life in prison. In these cases people’s photographs are plastered across media outlets with sensationalized headlines condemning the person with HIV as a criminal, vector of disease and dangerous, reckless and irresponsible person.

Read more here!

Keynote at Sex and Stigma Matters conference

In May of 2015, I gave a keynote presentation on my research to the annual Healthy Sexuality and Harm Reduction Conference for the Winnipeg Regional Health Authority.  Here is the abstract for the presentation:

Globally, Canada is considered a ‘hot-spot’ for criminalizing the non-disclosure and exposure of HIV. With over 155 prosecutions and more cases on the rise, Canada is known for imposing harsh and punitive penalties against people living with HIV who do not tell sex partners their HIV status, or potentially expose others to infection. A majority of those are charged with aggravated sexual assault, one of the most severe charges in the Criminal Code. Social scientists have documented that the law related to HIV non-disclosure and exposure has been applied asymmetrically, leading to a sense of uncertainty among people living with HIV. Criminal cases related to HIV non- disclosure in Canada are strongly patterned by gender, race, and sexual orientation. But how did we get here? Why is Canada so exceptional in how the criminal justice system has responded to HIV? If we look back throughout history, we can see that in the early days of the Canadian settler-colonial state those infected with diseases of “vice” such as syphilis and gonorrhea were subject to similar legal measures and labeled social outcasts worthy of incarceration. Through a historical examination of a number of cases from the past and present, this presentation will examine the Canadian context of criminalization of HIV and other STIs. We will examine the role of public health in supporting or impeding this increasing practice of criminalizing diseases that are sexually transmitted. We will discuss strategies to end stigma, discrimination and start to work towards the decriminalization of HIV exposure and non-disclosure and the decarceration of people living with HIV.

Participatory HIV research on 'sensitive' and 'illegal' topics

Based on the focus of my doctoral research, I participated in the the development of the Learning about illegal, sensitive and stigmatized topics for the HIV CBR Ethics project. Overall the project developed a series of 10 evidence-based fact sheets, we identify key ethical considerations when designing HIV CBR projects and seeking ethics review. We encourage HIV CBR teams to use these fact sheets to assist in project planning and to engage their REBs in a dialogue about a range of strategies for ensuring conventional ethical standards are balanced with diverse community needs. This specific fact sheet covers four key issues for researchers working with sensitive and or illegal topic:

• Supporting participants following the disclosure of sensitive and illegal information
• Research vs.therapy
• Professional and legal considerations (e.g.,duty to report)
• Protecting the well-being of participants and whole communities
• Working with REBs to develop strategies to protect sensitive data
• Framing sensitive research findings

Love Positive Women: From Montreal to Namibia

For the annual International Community of Women Living with HIV solidarity event LOVE POSITIVE WOMEN: The Romance Starts at Home students in my women's studies class 'Sex, Drugs & AIDS in the Era of Global Austerity: Feminist Perspectives' at Concordia University's Simone de Beauvoir Institute made solidarity valentines cards for the powerful women of the Namibian Women's Health Network. The class is examining a range of sociolegal issues facing women living with HIV around the world, including cases of forced sterilization. Forced sterilization of women living with HIV is an occurring practice, where stigmatizing health professionals will often sterilize women without their consent post-pregnancy to prevent future births. The practice presents a massive violation of medical ethics, human rights and interferes with the sexual autonomy of people living with HIV. 

In July 2012, the Namibian Women's Health Network won a landmark case in the Namibian High Court, which found that three women had been sterilized without their informed consent in violation of Namibian law. This case has set in motion similar legal challenges, including in Kenya.

When writing to Jennifer Gatsi-Mallet, founder and director of the Namibian Women's Health Network about our class project, she responded with a special message to the students in the class, which is as follows:

“First and foremost, I am a woman besides my HIV status
I am a lioness
I am wild
I am fierce
I am beautiful and have beauty stirring within me
I am stunning
I was born for this moment
I am not afraid of my strength
I am able to question and I have insights
I am Awake
I am Rising Up and
I dare to realise who I am.
POWERFUL! PERFECTION! BEAUTIFUL!

HAPPY VALENTINES TO ALL WOMEN LIVING WITH HIV”

— Jennifer Gatsi-Mallet

The  valentines sent from our class included a range of messages of support, love, and solidarity and will be distributed to women who are connected to the Namibian Women's Health Network. 

'Lock this whore up’: public health legislation & other ‘risks’ to public safety

Last month I presented at the Canadian Law and Society Association annual mid-winter meeting held in Montreal. For the presentation, I addressed what some perceive as an over-reliance on the criminal law to address the HIV non-disclosure in Canada. There have been calls from social scientists and activists to advance the use of public health legislation, regarded as a more ‘benevolent’ instrument of the state to manage people who have not told their HIV-positive status to sex partners. Using examples from two HIV non-disclosure cases in Ontario, I argued that public health legislation is one component of a diverse assemblage of technological formations of legal governance – comprised of public health law and criminal law, as well as civil law and other extra-legal practices – which have come to order the lives of certain classified people with HIV.

Examining the use of public health orders under Section 22 of the Ontario Health Promotion and Protection Act (HPPA), I discussed that these orders act as the first point of entry into a broader heterogeneous assemblage of legal actors, institutions, mechanisms and practices that act in concert to enable forms of surveillance and governance, constituting something altogether different than the stated benevolent intentions of public health. In the discussion I argued furthermore that public health legislation cannot be understood as easily divorced from this assemblage, or understood as a form of jurisprudence that can be applied in a silo. My analysis is grounded in a detailed examination of how public health orders are taken up in media reports, as evidence to inform court judgements, and in the context of psychiatric testimony by experts to classify ‘offenders’ as future risks to ‘public safety’. With a critical inquiry attuned to the social and historical constitution of the legal, I also discussed how these orders are underpinned by logic of risk mitigation, a logic aimed to protect the ‘public’ through governing the biologically and juridically marked viral underclass: the person with HIV who has come to be known as ‘unwilling’ or ‘unable’ to take the precautions to protect others from HIV transmission.